A Trial Lawyer’s Guide to Preserving Error in Virginia, Part 2: Hire a Court Reporter

There are a lot of weird things that you don’t know about me. One of them is that I love appellate records. I think they’re neat. Few parts of my job are as entertaining as reading through pleadings and transcripts to reconstruct what happened in the trial court and find points for appeal. The record tells a story. It’s kind of like reading Faulkner. And anything that is not in the record is not part of the story.

This leads to Step 2 in our guide to preserving error: Hire a court reporter.

The importance of Step 2 cannot be overstated (but that won’t stop me from trying). Generally speaking, an appellate court will not consider anything outside the record. That means that, if an exchange or concession did not appear in the record, for all practical purposes it did not happen. You need a court reporter to document what happens in court.

This leads to a corollary point: Once you have hired a court reporter, bring him or her with you everywhere. Think of the area within the court reporter’s earshot as the green zone. The court reporter keeps opposing counsel honest and the judge polite. It’s very dangerous to leave the green zone.

Now, be prepared: The judge–and sometimes opposing counsel–will try to trick you. They will try to lure you out into the hall or back into chambers, to discuss a few “housekeeping matters” outside the presence of the jury. The judge may offer you candy. Don’t take it. It’ s a slippery slope. If you’re not careful, by the end of trial they’ll have you back there talking about jury instructions off the record. (I am 98% sure they teach this move in judge school.)

It’s all very collegial, and your failure to get your objections into the record will have the added benefit of insulating the trial court’s ruling from appeal.

Don’t fall for it. Here are some practice pointers:

If a matter is important enough to require a court hearing, it is important enough to require a court reporter. Think of it as a cost of doing business.

Find a court reporter that you can trust, and cultivate a relationship. Be a good customer. Ask for him or her by name. Steve Emmert has a fine article on this called something like “On the Care and Feeding of Court Reporters.” Highly worth reading, and I wish I could find a copy. Update: here is a link to Steve’s essay, “The Practitioner’s Guide to the Care and Feeding of Court Reporters,” which ran in the Summar 2009 VBA Journal.

Do not let the judge lure you back into his den chambers without your trusty court reporter.

If you do get tricked into discussing something important off the record, remember to state your objections on the record later. As an aside, that’s why it’s so dangerous to talk about jury instructions off the record. As a practical matter, it’s almost impossible to recite all of your objections accurately at the end of a long day of trial. Don’t put yourself in that situation.

Do not skimp on the court reporter because you assume that, if anything important happens, you can submit a written statement of facts. That strategy is fraught with peril for many reasons.

Make the transcript part of the record. In Virginia state court, that means filing it within 60 days after entry of judgment. E.g., Va. Sup. Ct. R. 5:11(a).